Monday, 2 March 2020

The Oldest Laws

The English legal system can credibly claim to have a continuity that is almost unsurpassed in the world. An actual 'start date' for it all is fiendishly difficult to pin down, but unlike many other legal systems, it has never had a reform so drastic that the established order was upended and many or all prior laws were invalidated.

Consequently, a small number of extant laws are of incredible vintage. The classic example of this is the Treason Act 1351 [1], which still today provides about three-quarters of the definition of High Treason in English Law.

But to find the truly oldest statute [2] we need to go back nearly a century further.

I apologise for the extraordinary depth of this article. Whilst it transpires the truly oldest English law is quite simple, the third and fourth oldest are laws of unusual and baffling complexity requiring fairly extensive explanations.

Disclaimer: I am not a lawyer (and certainly not a land lawyer) so a) don't rely on this article and b) if I have erred in something (quite likely) let me know and I will issue an erratum.

Second disclaimer: I am incapable of reliably spelling either subinfeudation or feoffee correctly; so, sorry. Those who know what is coming in the fourth statute in this article will already be shivering in terror...

As a bonus, at the end we will quickly cover the oldest extant Scottish and Irish laws.

(Yes the footnote numbering went wonky, I know...)

The Statute of Marlborough 1267

This isn't the oldest statute you will find in Statutes of the Realm [3]. That would be the repealed Provisions of Merton [4], which seemed to still be finding utility in the 16th century in litigation regarding enclosing commons, if this newsletter by the Merton Historical Society is anything to go by.

This is, however, the oldest extant statute. It is twelfth in Statutes of the Realm. Editorially today it appears on as two distinct 'Acts', viz. Statute of Marlborough 1267 [Waste] and Statute of Marlborough 1267 [Distress]

One assumes this division dates from the later editions of the Revised Statutes [4A] (I've only been able to check volume one of the first edition), but in any case it makes practical sense. At the time of Henry III a 'statute' was really a collection of disparate matters that were all treated of at the same council or assembly. The modern practice of first dating statutes by regnal year and chapter, and latterly calendar year and chapter, essentially derives from this.

The first of the two deals with restrictions on 'distress', i.e. the almost obsolete practice of taking distress for rent [5] [5A]. This comprises what were original chapters 1, 4 and 15 of the original Act, and provides [6]

I. Of wrongful Distresses, or Defiances of the King’s Courts. Punishment for unlawful Distresses. 
Whereas at the time of a Commotion late stirred up within this Realm, and also sithence [a], many great Men, and divers other, refusing to be justified [b] by the King and his Court, like as they ought and were wont in Time of the King’s noble Progenitors, and also in his Time; but took great Revenges and Distresses of their Neighbours, and of other, until they had Amends and Fines [c] at their own Pleasure; and further, some of them would not be justified by the King’s Officers, nor would suffer them to make Delivery of such Distresses as they had taken of their own Authority [d]; It is Provided, agreed, and granted, that all Persons, as well of high as of low Estate, shall receive Justice in the King’s Court; and none from henceforth shall take any such Revenge or Distress of his own Authority, without Award of our Court, though he have Damage or Injury, whereby he would have amends of his Neighbour either higher or lower. 
And upon the foresaid Article It is Provided and granted, that if any from henceforth take such Revenges of his own Authority, without Award of the King’s Court as before is said, and be convict thereof, he shall be punished by Fine, and that according to the Trespass; and likewise if one Neighbour take a Distress of another without Award of the King’s Court, whereby he hath Damage, he shall be punished in the same wise, and that after the Quantity of the Trespass; and nevertheless sufficient and full Amends shall be made to them that have sustained Loss by such Distresses.
[a] 'sithence', thereupon, since, subsequently.
[b] more in the sense of 'judged' than the modern meaning 
[c] at this time 'fines' were a great deal more voluntary than they subsequently became; compare with 'amerce' 
[d] i.e. they haven't co-operated with the King's courts who were trying to straighten things out 
IV. Distresses shall not be driven out of the County. Distresses shall be reasonable.
None from henceforth shall cause any Distress that he hath taken, to be driven out of the County where it was [taken] [e]; and if one Neighbour do so to another of his own Authority, and without Judgment [f], he shall make Fine [g], as above is said, as for a Thing done against the Peace; nevertheless, if the Lord Presume so to do against his Tenant, he shall be grievously punished by Amerciament. 
Moreover, Distresses shall be reasonable, and not too great; and he that taketh great and unreasonable Distresses, shall be grievously amerced for the Excess of such Distresses.
[e] sic. square brackets are in Statutes of the Realm 
[f] sic. Statutes of the Realm was either secretly American or ahead of its time 
[g] vide [c] supra 
XV. In what Places Distresses shall not be taken. 
It shall be lawful for no Man from henceforth, for any manner of cause, to take Distresses out of his Fee [h], nor in the King’s Highway, nor in the common Street, but only to the King or his Officers, [having special authority to do the same] [i]
[h] an estate in land, cf. estates in fee simple absolute, estates it fee tail; see also 'feu' &c. or keep reading this article until Quia Emptores
[i] sic. vide [e] supra 

The Law Commission (I lost the citation to it, but Google should have it somewhere) have noted that the Tribunals, Courts, and Enforcement Act 2007 have made parts of this obsolete. Specifically, chapter 15, which prohibits taking distresses away from a debtors place of business or residence is unnecessary because of the effective abolition of almost all forms of distress, and the prohibition of taking goods on the highway is essentially abolished by regulations made under the 2007 Act as well.

In addition, the same Act made almost all of chapter 4 otiose since the prohibition on taking goods 'out of the county' doesn't make a lot of sense where there are no longer jurisdictional issues between counties [7] and in any case the regulations require the goods so seized be stored within a reasonable distance.

However, they recommended keeping the final part of chapter 4 (that which provides someone who takes excessive distress will be 'amerced' [8] ) since at least two enactments still provide for a form of distress or a cognate proceeding: the Harbours, Docks, and Piers Clauses 1847 [9] and the Markets and Fairs Clauses Act 1847.

Chapter 1 is of arguably more general and less niche import, though. Although quite prolix, it does provide a legal basis for saying that it is not permitted for people to just 'take the law into their own hands' and to seize goods from other people without some sort of court process. In a way, it's an early example of the idea that due process is necessary before someone can be deprived of something.

One can perhaps see chapter 1 as a sort of legal backstop. While it would be highly unusual to see it pleaded today as a reason to obtain damages, it essentially means that were there to be a loophole or omission in the more modern approach, this can't be exploited by someone to obtain 'justice' outside of the courts of justice. The state, obviously, would be required by the Human Rights Act 1999 to behave; but unless a charge of theft or otherwise could be substantiated, this old enactment might prove necessary for an action between two private citizens.

What of the second part of the Statute? This is the 'waste' bit, at chapter 23

XXIII. Remedy against Accountants [a]. Farmers shall do no Waste. Remedy thereon.
Also Fermors [b], during their Terms [c], shall not make Waste, Sale, nor Exile of House, Woods, Men, nor of any Thing belonging to the Tenements that they have to ferm [d], without special Licence had by Writing of Covenant [e], making mention that they may do it; which thing if they do, and thereof be convict, they shall yield full Damage, and shall be punished by Amerciament [f] grievously
[a] that bit was repealed by the Statute Law Revision and Civil Procedure Act 1881 (44° & 45° Vict. cap. 59) and would have appeared immediately before the text here. [11]
[b] farmers
[c] term, i.e. time, of their lease or tenancy, not the specific terms of the covenant itself. 
[d] farm, vide [b]  
[e] cf. [c]
[f] cf. footnote [8] infra  

Waste, here, means managing, or mismanaging, or just plainly not managing one's farm which one leases in such a way as to ruin it and cause a loss of value. I was told a while back by someone who worries about these things for a day job that even today this isn't merely a theoretical issue in agricultural land law, albeit this particular enactment isn't used directly.

What this provision basically means is that tenant farmers are liable for any damages (i.e. losses) their landlord (or lessee, it doesn't really matter all that much) suffers as a result of their poor management of their farm. By virtue of the final sentence it seems to envisage a punishment above and beyond mere damages too, but I strongly suspect modern courts would see that as obsolete and at the very best a bad idea.

So, there we have it. If you're a farmer who somehow causes your leased lands to be unfarmable, or someone who wants to just seize goods without a court order, there is a seven-hundred and fifty-two year old statute stopping you. By way of comparison, the United States Constitution is only two-hundred and thirty-one years old; meaning the Statute of Marlborough is over three times older!

The Statute of Westminster 1275

No, no that Statute of Westminster. This one [12]. This is my favourite old statute for reasons that will readily become apparent. It is often called the 'First' Statute of Westminster. Not because of the one made six-hundred and fifty-six years later, but because of something else which we will come to shortly. Since I like to think of all Statutes of Westminster being created equal, mostly because I'm odd, I will not call it the first.

Like the Statute of Marlborough, this was a bit of an omnibus enactment containing such delights as regulation of what is and isn't wreck [13]; the selection of coroners [14]; something about stealing 'tame beasts' from parks [15]; and banning champerty [16]. However, chapter 5 [17] is still extant, and reads [18]
V. Freedom of Election
AND because Elections ought [a] to be free, the King commandeth upon great Forfeiture, that no Man by Force of Arms, nor by Malice, or menacing, shall disturb any to make free Election. 
[a] ought, in earlier English, really had a meaning more akin to must or shall 
In other words, the idea that elections should not be decided by violence or threats. Now, as it is trite to observe, English and later British elections would hardly meet the modern definition of free and fair for essentially the next six-hundred years. But this short sentence provided the basic underpinning for all the abortive, and later successful, attempts to provide for open and fair elections in Britain.

I'm not really persuaded it does anything now, but it is nice to leave it around as a reminder of the importance of at least the concept of democracy. This being essentially the second or third (depending on how you want to count it) oldest extant law in England and Wales.

De donis conditionalibus 1285

Let's start with the text of the extant part of the 'second' Statute of Westminster 1285 [19], with apologies for its impenetrable length

I. Several Sorts of Gifts of Lands upon Condition; In such Gifts the Donor’s Will shall be observed. Writs of Formedon in Descender. A Fine shall not bar the Heir in Tail. 
FIRST, Concerning Lands that many times are given upon Condition, that is to wit, Where any giveth his Land to any Man and his Wife, and to the Heirs begotten of the Bodies of the same Man and his Wife [a], with such Condition expressed that if the same Man and his Wife die without Heirs of their Bodies between them begotten, the Land so given shall revert to the Giver or his Heir: In case also where one giveth Lands in free Marriage, which Gift hath a Condition annexed, though it be not expressed in the Deed of Gift, which is this, That if the Husband and Wife die without Heir of their Bodies begotten, the Land so given shall revert to the Giver or his Heir: In case also where one giveth Land to another, and the Heirs of his Body issuing; it seemed very hard, and yet seemeth to the Givers and their Heirs, that their Will being expressed in the Gift, was not heretofore, nor yet is observed: in all the Cases aforesaid, after Issue begotten and born between them, to whom the Lands were given under such Condition, heretofore such Feoffees [b] had Power to aliene [c] the Land so given, and to disherit their Issue of the Land, contrary to the Minds of the Givers, and contrary to the Form expressed in the Gift: And further, when the Issue of such Feoffee is failing, the Land so given ought to return to the Giver, or his Heir, by Form of the Gift expressed in the Deed, though the Issue, if any were, had died: Yet by the Deed and Feoffment of them, to whom Land was so given upon Condition, the Donors have heretofore been barred of their Reversion [d], which was directly repugnant to the Form of the Gift: Wherefore our Lord the King, perceiving how necessary and expedient it should be to provide Remedy in the aforesaid Cases, hath ordained, That the Will of the Giver, according to the Form in the Deed of Gift manifestly expressed, shall be from henceforth observed; so that they to whom the Land was given under such Condition, shall have no Power to aliene [e] the Land so given, but that it shall remain unto the Issue of them to whom it was given after their Death, or [shall revert] [f] unto the Giver or his Heirs, if Issue fail whereas there is no Issue at all, or if any Issue be, and fail by Death, or Heir of the Body of such Issue failing. Neither shall the second Husband of any such Woman, from henceforth, have any thing in the Land so given upon Condition [g], after the Death of his Wife, by the Law of England, nor the Issue of the second Husband and Wife shall succeed in the Inheritance, but immediately after the Death of the Husband and Wife, to whom the Land was so given, it shall come to their Issue, or return unto the Giver, or his Heir, as before is said. . . .  [h] And it is to wit that this Statute shall hold place touching Alienation of Land contrary to the Form of the Gift hereafter to be made, and shall not extend to Gifts made before [i]. And if a Fine be levied hereafter upon such Lands, it shall be void in the Law; neither shall the Heirs, or such as the Reversion belongeth unto though they be of full Age, within England, and out of Prison, need to make their Claim. [j]
[a] this would appear to exclude illegitimate children, &c.
[b] the arcane term feoffee means one whom a freehold estate in land has been demised to; or something along those lines anyway.
[c] aliene = alienate, i.e. enfeoff (yes, I know I know) someone else into the same parcel of land
[d] this basically means that while if the estate had not been alienated and the donee's children all predeceased the donee, the estate would revert to the donor,  but having been alienated it will instead not so revert. [20]
[e] vide [c] 
[f] sic. as in Statutes of the Realm, but unlike last time we have a reason for them, viz. "Some words illegible on the Tower Roll are supplied from the entry of this Statute in fo. 260, etc. of Register A, in the Chapter House at Westminister, of which the Various Readings are also given. The words defective are distinguished by being included in brackets without any figure of reference."
[g] This excludes the following sequence of events (i.e. it provides for a reversion, not inheritance): a donor grants to a donee and his wife a parcel of land; the donee dies either sans issue or with issue who all predecease him; the wife remarries. By this provision, neither the wife's second husband, nor the issue of their marriage (nor if the wife should now predecease her second husband, his second wife...) have any interest in the estate [21]
[h] repealed by the Statute Law Revision Act 1887
[i] even mediæval jurists were uncomfortable with ex post facto laws! 
[j] I have not a clue what this final provision is angling at, and every text I've read on this enactment omits to discuss the final sentence.
I suspect my annotations have actually reduced everyone's understanding. So to explain this statute we are going to tell a story. Imagine a Lord Lewis [22]. He has a parcel of land, a farm perhaps. He decides to grant this farm — the freehold that is, not a lease — to a Mr. and Mrs. Jones, but he attaches a condition: the farm must descend to the Jones' children, and if the Jones' don't have children it will revert to his Lordship. If this condition is met, however, under the law at the time the estate would become fee simple absolute.

Mr. and Mrs. Jones are actually looking to make a quick buck, not provide for their children. So, on the birth of their child Master Charles Jones, they sell the farm (so here they are grantor) to someone else (the grantee). Before they had a child, this would have been impossible, but after by a legal fiction they can since the 'condition' is met [23].

The effect of the statute, which should now make at least some sense, is that this sort of schadenfreude is no longer possible: any attempt to defeat the donee's condition will fail. Although the Law of Property Act 1925 [24] abolished all the estates in land except for fee simple absolute and a lease for term of years in law; what is effectively fee tail could still be created in equity. Hence this statute survived. The Trusts of Land and Appointment of Trustees Act 1996 at paragraph 5 of Schedule 1 seems to have abolished the last remnants of this (and converted any attempt to do so into a 'conventional' trust [25]), but I can imagine there are all sorts of lurking oddities that mean keeping this venerable statute around is necessary.

I await the actual land lawyers to tell me I have this all backwards, because, to be very honest, mediæval land law makes even me question my own sanity at times!

However, after a two sentence diversion, this sets us up for some even more exciting mediæval land law...

Commons Act 1285

Another part of the 'second' Statute of Westminster survived until very recently, namely chapter 46. But since it was repealed by the Commons Act 2006, we will simply move on.

Quia Emptores 1290

For our final 'old law' (the next one would be the re-issue of Magna Carta so this feels like a good place to stop) we find some mediæval land law par excellence. This is the 'third' Statute of Westminster, the extant part of which is invariably known by its Latin incipit Quia Emptores [26] ('because the buyers'). Once again, let's start with the text.

I. Freeholders may sell their Lands; so that the Feoffee do hold of the Chief Lord.
FORASMUCH as Purchasers of Lands and Tenements of the Fees [a] of great men [b] and other Lords, have many times heretofore entered into their Fees, to the prejudice of the Lords, to whom the Freeholders of such great men have sold their Lands and Tenements to be holden in Fee of their Feoffors [c], and not of the Chief Lords of the Fees [d], whereby the same Chief Lords have many times lost their Escheats [e], Marriages [f], and Wardships [g] of Lands and Tenements belonging to their Fees; which thing seemed very hard and extream [h] unto those Lords and other great men, and moreover in this case manifest Disheritance: Our Lord the King, in his Parliament at Westminster after Easter, the eighteenth year of his Reign, that is to wit, in the Quinzime [i] of Saint John Baptist, at the instance of the great Men of the Realm, granted, provided, and ordained, That from henceforth it shall be lawful to every Freeman to sell at his own pleasure his Lands and Tenements, or part of them; so that the Feoffee shall hold the same Lands or Tenements of the Chief Lord of the same Fee, by such Service and Customs as his Feoffor held before.
[a] vide [h] in cap. XV of 20° Hen. III supra [27] 
[b] in a future blog, we're going to discuss the term 'great men' in a totally unrelated context
[c] scroll up a bit 
[d] this will become important in a moment, the 'Chief Lord' is essentially the superior landlord in a chain of landlords, lessees (or freeholders), sublessees (is that even a word?), and so on. [27A]
[e] reversion when an estate had no one to descend to, this concept still survives today, but the differences between bona vacantia, and property which escheats into Her Majesty's demesne as paramount Lord is, amazingly, outwith this blog
[f] not a clue, sorry
[g] important, this one: if a feofee died whilst their heir had not yet reached their majority, they would become a ward of the Chief Lord [28]
[h] archaic spelling of extreme, here it means something along the lines of 'excessive' 
[i] the fifteenth day after the festival, which I make to be the 9th July
II. Sale of Part. Apportionment of Services.
AND if he sell any part of such Lands or Tenements to any, the Feoffee shall immediately hold it of the Chief Lord, and shall be forthwith charged with the Services, for so much as pertaineth, or ought to pertain to the said Chief Lord for the same parcel, according to the Quantity of the Land or Tenement [so] sold: And so in this case the same part of the Service shall remain to the Lord, to be taken by the hands of the Feoffee, for the which he ought to be attendant and answerable to the same Chief Lord, according to the Quantity of the Land or Tenement sold, for the parcel of the Service so due.
III. Mortmain prohibited. [j]
. . . [k] And It is to wit, that this Statute extendeth but only to Lands holden in Fee Simple [l]; and that it extendeth to the time coming [m]; and it shall begin to take effect at the Feast of Saint Andrew the Apostle next coming [n]. [Given the eighteenth year of the Reign of King Edward, Son to King Henry.] [o]
[j] this marginal note is wrong; this section is really concerned with extent and commencement since the other part has been repealed.
[k] repealed by the Charities Act 1960; mortmain is something we will worry about another time 
[l] i.e. freeholds, and I suspect this meant it does not apply to fee tail lands (as to which, see de donis conditionalibus, supra
[m] i.e. forever 
[n]  30th November
[o] sic. brackets as in Statues of the Realm 
The Wikipedia article on this statute is very extensive, and I could never do justice to the whole thing here. So here is a very simple (and probably somewhat wonky) summary.

In the feudal system, land was granted by the King to Lords, who then regranted parcels to lower Lords, who may do likewise, and so on. A peculiarity of land law at the time was that leases were not inheritable, but that equally freeholds would come with duties (petty serjentry or socage) to the superior Lord. Over time, Lords realised that their tenants would look after land and buildings better with a guaranteed right of inheritance [29].

So, tenants were increasingly granted estates in fee simple as opposed to leases (we ignore entirely the type of estate called a copyhold, this is already complex enough). But one of the incidents of an estate in fee simple is that it is capable of subinfeudation; that is, the feoffee can themselves enfeoff persons into parcels of — or indeed the whole of — the land as their landlord (and likewise demand duties of them). These 'intermediary' landlords are termed mesne Lords, being landlords who have vassals but are themselves vassals.

The result: an impossibly confusing web of multiply subinfeudated land where not only was it unclear who owned what, it was equally unclear who owed what duties to whom. Or even what should happen (well it was sometimes clear; but not always) if a mesne Lord should forfeit or die intestate and thus their estate escheated. Isn't this verbiage wonderful?

Anyway, to sort this all out, and generally to check the growth of this 'middle class' of mesne Lords; the statute Quia Emptores was passed. Its effects are not immediately obvious from the text but they are profound. The key line, in my opinion, is
so that the Feoffee shall hold the same Lands or Tenements of the Chief Lord of the same Fee, by such Service and Customs as his Feoffor held before.

Remember in that note above I said the words 'Chief Lord' are important? Well this is why. That phrase means that yes, a landowner can sell portions of land, but they can't then interpose themselves as a mense Lord. Instead, they have to provide for the buyer to assume their position relative to their Lord, a process called substitution. With a stroke, this statute abolished (except for the Crown, which could still infeudate [29A] at will) the whole process of the feudal system.

This does still have a continuing effect today, in that it is this enactment which stops someone who owns an estate in fee simple absolute from purporting to demise a parcel of it to someone else as a fee simple whilst maintaining (things like restrictive covenants and so on aside) some rights to it themselves.

For completeness, section II simply extends section I, with the necessary pro rating of feudal duties, to substitutions of parcels of land rather than the whole thing. Section III since the mortmain bits have been repealed is of limited present day importance, except that it makes clear that this enactment does not apply to leases for terms of years — i.e. sub-leasing, the leasehold equivalent of subinfeudation, is still possible.

It is certainly possible to argue that Quia Emptores is the start of all modern land law — and it is generally acknowledged to be part of the common law of all US states with a small number of exceptions [30], too. Quite something for a seven-hundred and twenty-nine year old statute, who's initial purpose was to stop the feudal system getting out of control and put the small number of powerful lords back in the driving seat!

Scotland and Ireland

This will be brief, I promise.

The oldest Scottish statute, i.e. the oldest extant Act of the Old Scottish Parliament, seems to be the Royal Mines Act 1424 [31], which in the original language reads

Of mynis of golde and silver
Item gif ony myne of golde or siluer be fundyn in ony lordis landis of the realme and it may be prowyt that thre halfpennys of siluer may be fynit owt of the punde of leide The lordis of parliament consentis that sik myne be the kingis as is vsuale in vthir realmys
This provides for the Scottish equivalent of what in England were known as 'Mines Royal' [32]. That is, that all gold and silver in the ground, and the right to work it, belonged to the Crown. By this Act, gold and silver in Scotland became part of the inter regalia, the property inherently belonging to the Crown; where they remain to this day.

The oldest Irish statute, in the sense of the oldest Act of the Old Irish Parliament still in force in Northern Ireland [33] is one part of "Poyning's Law". Without getting too deeply into the thorny issues surrounding this, the part that remains is simply that which provides that the existing English statutes (including De donis conditionalibus and friends) extend to Ireland, viz.

An Act confirming all the Statutes made in England. 
Forasmuch as there been many and diverse good and profitable statutes late made within England by great labour, studie, and policie, as well in the time of our sovereign lord the King, as in the time of his full noble and royal progenitors, late Kings of England, by the advise of his and their discreet counsail, whereby the said realm is ordered and brought to great wealth and prosperity, and by all likelyhood so would this land, if the said estatutes were used and executed in the same:
Wherefore all estatutes, late made within England, concerning or belonging to the common and publique weal of the same, from henceforth be deemed good and effectuall in the law, and over that be acceptyd, used, and executed within Ireland in all points at all times requisite according to the tenor and effect of the same; and over that they and every of them be authorized, proved, and confirmed in Ireland. And if any estatute or estatutes have been made within this said land, hereafter to the contrary, they and every of them be adnulled, revoked, voyd, and of none effect in the law.

The only real necessity for this Act since the Acts of Union in 1800 is to preserve any residual effect in Northern Ireland [34] of statutes of the English, and later British, Parliaments. It has, for example, been repealed in the Republic of Ireland as being entirely unnecessary. But it remains the cause of some residual quirks of Northern Irish Law where the underlying "English" statute has been repealed in England.

End note

I hope this particular dive into four very old laws hasn't scared everyone away. Normally I write esoteric but simple things, but sometimes with the interesting comes the complex.

When the inevitable errata are added they will appear here :-)


The enactments quoted here are so clearly out of copyright — I mean they predate it as a modern concept by about four centuries — it would be farcical to say anything.

[1] 25° Edw. III Stat. 5 cap. 2, "A statute made at Westminster; In the Parliament holden in the Feast of Saint Hilary; In the Twenty-fifth Year of the Reign of King Edward the Third"; all parts of this except "Statute the Fifth" having long since been repealed. Interestingly the statute itself was amended very recently in 2013 by the Succession to the Crown Act!
[2] Some parts of the Common Law will predate even this, and obviously the original version of Magna Carta did.
[3] A wonderful series of volumes containing every English then British statute out to 1714, and every Private Act from 1514 onwards.
[4] I guess the citation would be something like 20° Hen. III for the whole thing. What became known as the Commons Act 1236 (and was the last surviving part until Statute Law Revision Act 1953 (2° Eliz. II cap. 5) repealed it) was usually cited as 20° Hen. III cap. 4. You'll find it on page 1 of volume 1 of Statutes of the Realm, unsurprisingly.
[4A] The Revised Statutes were a re-issue of Statutes of the Realm, updated to cover things after 1714, with amendments and repeals applied; later morphing into Statutes in Force, it is the spiritual predecessor of
[5] Although, as we shall see, neither totally obsolete, nor made obsolete all that long ago...
[5A] Distress is also known as distraint; they're identical concepts but I prefer distress
[6] This is the text from Statutes of the Realm, lovingly copy and pasted from because I'm lazy. If you want to read the original Latin, in record type, you can go there and have a nose, however. I've removed the footnotes about variant readings because even I often don't care about those, but have added footnotes explaining some fiddly words.
[7] This hasn't really been true for quite a while, and certainly not since the latter part of the 19th century.
[8] What that word means could be a blog of its own. Imagine it as a fine or damages for now.
[9] Section 44; 10° & 11° Vict. cap. 27
[10] Section 38; 10° & 11° Vict. cap. 14
[11] This originally provided that "It is provided also, That if Bailiffs, which ought to make account to their Lords, do withdraw themselves, and have no Lands nor Tenements whereby they may be distrained; then they shall be attached by their Bodies, so that the Sheriffs, in whose Bailiwick they he found, shall cause them to come to make their account.", see Statutes of the Realm, volume one, page twenty-four.
[12] Found at Statutes of the Realm, volume one, page 26. Amazingly, there are no repealed statutes intervening between it and the Statute of Marlborough eight years prior.
[13] 3° Edw. I cap. 4
[14] 3° Edw. I cap. 10; repealed as late as the Coroners Act 1887 (50° & 51° Vict. cap. 71)
[15] 3° Edw. I cap. 20; repealed by 7° & 8° Geo. IV cap. 27
[16] 3° Edw. I cap. 25; repealed by the Criminal Law Act 1967 which also abolished the offence altogether.
[17] 3° Edw. I cap. 5
[18] The marginal note, inserted here, in Statutes of the Realm is inexplicably missing on
[19] 13° Edw. I cap. 1; the remaining forty-nine chapters treat of such matters as wardship (cap. 16); conserving salmon (cap. 47) and that perennial nuisance, mortmain (cap. 32)
[20] Look, I'm trying to be as simple as possible here...
[21] I'm really trying....
[22] That's me pretending to be important!
[23] This is a gross oversimplification of an otherwise extraordinarily complex topic, and isn't quite right, but you get the gist.
[24] citation here please
[25] in so far as trusts ever make a lot of sense or seem to follow obvious conventions!
[26] 18° Edw. I cap. 1
[27] Yes, I enjoyed making this note as difficult to read as possible. Got to challenge the reader just a little bit!
[27A] It has been pointed out to me that Chief Lord here may actually mean those who were tenants of the King alone — the Latin has de capitali domino feodi; which may very well be related to the term tenere de capite. However, unless one reads it as applying to any superior landlord, the statute doesn't really seem to work in practice, in my highly not-a-lawyer opinion.
[28] Who could be the King, and the fees for redeeming such wardships were an esoteric yet important source of revenue at times
[29] This isn't to say that de facto inheritance didn't happen, just that it was not guaranteed — and although it required payment of money or goods, so could inheritance of a freehold so require. Indeed, at the time it was possible to add as an incident to an estate in fee simple requirements called socage which are not altogether dissimilar to a ground rent.
[29A] Explicitly not subinfeudate. The Crown's demesne is held (and continues to be held) by paramount right, consequently a grant from it is an infeudation, not a subinfeudation. It is this distinction that causes this Act to not bind the Crown. It also causes lasting subtleties with the way The Queen's Most Excellent Majesty demises land to this day.
[30] Pennsylvania springs to mind, where I think all titles are allodial; but let's not worry about adding yet another term to this already overlong article.
[31] I don't know how Scottish Acts are cited, but every printed edition I've seen says this is 1424 cap. 13, but note that one place has it as cap. 12.
[32] It was later established, although it had always been averred to be the case, in the 'Case of Mines', R. vs. Earl of Northumberland (75 ER 472) that in England all gold and silver mines belonged to the Crown by prerogative right; this was not true in Scotland hence an Act was needed to establish it.
[33] The situation in the Republic is left as an exercise for the reader.
[34] For example, there is a note on that Quia Emptores as presented there might not be in the form in which it has effect in Northern Ireland.

Friday, 21 February 2020

The Appointment of Ministers of the Crown and Other Public Bodies

Well, actually, this is more properly "how to appoint a whole ministry" (and some other stuff).

But first, some background. This article is (part of) the culmination of two years of FOIA request making, archive rummaging, and Twitter DMing into just how government ministers are appointed. And it goes without saying that it would not exist without the people mentioned in the acknowledgements.

For a topic of supreme importance, viz. who is the government, there seems to be very little on the Internet about this, and far less material collated together. But we are going to change that.

However, because time is precious - and even after two years of working out the status quo my knowledge of prior practice is most incomplete - this is not a complete history of all this. That may well follow in the future, but for now it's just a snapshot in time.

The Prime Minister

The Prime Minister (who is also First Lord of the Treasury, to which we return below, and always ex officio Minister for the Civil Service [1]) is Her Majesty's principal adviser and minister, and is the conduit through which Her Majesty and Her Government interface.

Amazingly, however, the appointment of the Prime Minister is one of the simplest of all. It is also partially televised (a helicopter following a car), so its probably the only one most people have encountered. 

The outgoing Prime Minister has an audience of the Queen [2] where he resigns and advises Her Majesty who to call as his successor. The resignation of a Prime Minister is deemed, though not by virtue of any law, to also be for all other ministers. Although the outgoing Prime Minister recommends a successor to Her Majesty, it is generally accepted that theoretically the Queen has discretion on who to call [3]. The now former Prime Minister departs Buckingham Palace, and for a brief time Her Majesty Herself is essentially running Her government.

The Queen's Private Secretary then summons the new Prime Minister to an audience. After arriving, Her Majesty offers the job, for want of a better phrase, to him, and he is said to have "kissed hands". Not that any hand kissing is required these days [5]. After a further courtesy meeting with the new Prime Minister's spouse, they depart. Customarily, the new Prime Minister then makes an address from outside Downing Street opening with words to the effect of "Her Majesty the Queen has asked me to form a government in Her name, and I have accepted".

And that's it. No paperwork, no proclamations. Just a simple entry in the Court Circular [6], viz.
Buckingham Palace
24th July, 2019 
The Rt Hon Theresa May MP had an audience of The Queen this afternoon and tendered her resignation as Prime Minister and First Lord of the Treasury, which Her Majesty was graciously pleased to accept. Mr Philip May was also received by The Queen. 
Her Majesty received in audience the Rt Hon Boris Johnson MP and requested him to form a new Administration. The Rt Hon Boris Johnson MP accepted The Queen’s offer and kissed hands upon his appointment as Prime Minister and First Lord of the Treasury.
Although in a way, the addition of "First Lord of the Treasury" there is a bit misleading, as we will discover later.

There of course remains the theoretical possibility that Her Majesty could decline to "graciously accept" Her Prime Minister's resignation, based on the old constitutional theory that ministerial office is both an honour and a duty. Notice also that the Palace prefer "Administration" to either ministry or government, which is arguably constitutionally proper since in the gap between Prime Ministers Her Majesty's Government continues, but the administration of it have demitted office.

[C3] Addendum: it occurs to me that the preceding paragraph doesn't quite say what I intended for it to say. What I meant was that by the Prime Minister's resignation he, and thus the leadership of the administration, has ceased to hold office, and by virtue of the same the entire ministry is deemed to have resigned but not that individual ministers or secretaries cease to exercise their offices. As some of the warrants and patents make clear, most are relieved of their office by being displaced by their successors.

Secretaries of State

The vast majority [7] of the senior government ministers hold the office normally known as Secretary of State. Taking the Home Secretary as an example — since it is technically the senior one — this is a contraction of Her Majesty's Principal Secretary of State for the Home Department [8]. 

The historical origins of these offices are complicated, but this is an attempt at a one paragraph summary. The office of King's Secretary [9] became divided into two, one leading the Northern Department and one leading the Southern Department in ca. 1688 [10]. After the Act of Union in 1707, a third Secretary of State for Scotland was appointed for a while until this abated in 1742. In 1768 a Secretary of State with responsibility for colonial matters were appointed. But in 1782 the Home Office and the Foreign Office were born, and the colonial secretary merged with the Home Secretary.

Thereafter the number of Secretaries of State very slowly increased so that by 1858 there were five: the Home, Foreign, Colonial, War, and India Secretaries. Things remained somewhat stable, albeit with some changes related to the creation of the Ministry of Defence, until the 1960s where the modern practice of heading almost all departments with a Secretary of State began.

It appears to be an open question whether or not there is one office of Principal Secretary of State, which multiple occupants share, or multiple distinct offices, or some hybrid of the two. No doubt making things simultaneously more and less confusing, the Interpretation Act 1978 provides that 
“Secretary of State” means one of Her Majesty’s Principal Secretaries of State.
Anyway, how are Secretaries of State appointed. It involves seals, and only seals [11]. Specifically, at a meeting of the Privy Council, Her Majesty will hand the new Secretary of State his seals of office. These seem (thanks to Ned Donovan's article, which I thoroughly recommend) to comprise three, viz. the signet, the lesser seal, and the cachet. Quoting from Ned, who does this better than I could
For instance, the Lesser Seal is only used by the Home Office, and only put on certain documents, while the Cachet is only used when the Queen writes a letter to a foreign head of state.
Although in effect a Secretary of State is appointed from the moment the Prime Minister says they are, it is this formal act of Her Majesty handing them their seals that elevates them from "person who will be a Secretary" to "Secretary". It is then recorded in the Privy Council books like this [12]

and in the Court Circular like this [13]
The following took the Oath of Office or made affirmation, kissed hands upon appointment and received the Seals of Office: [...] Ben Wallace MP (as Secretary of State for Defence) [...]
and it totally escapes me why the Privy Council records do not mention the seals but the Circular does.

The oath referred to in the Privy Council record is the Official Oath, as defined in section 3 of the Promissory Oaths Act 1868 as
“I, , do swear that I will well and truly serve Her Majesty Queen Victoria [14] in the office of So help me God.”
The exact list of persons required to take that oath on appointment is in the Schedule to that Act, and as you will notice does not comprise every minister (but does include some surprising ones, like the Earl Marshal and the Lord Clerk Register).

And that's it. It appears that a new Home Secretary doesn't even get a certificate.

It seems, (thanks to Jason Loch for noticing this) that historically Secretaries of State would have an audience of Her Majesty to return their seals on demitting office, but that this mysteriously stopped at some point in the 2000s.

The Lord High Chancellor

The Lord High Chancellor of Great Britain is an office of considerable ancienty, and some argue it predates in form if not substance the Norman Conquest [15]. As the second Great Officer of State [16] the Lord Chancellor formally outranks the Prime Minister, and in the Order of Precedence sits between the Lord Archbishop of Canterbury and the Lord Archbishop of York [17]. The Prime Minister's precedence we will return to below (I'm really saving this one up).

Although over time the office accreted considerable duties - before reforms in the 2000s he was concurrently the Speaker of the House of Lords, the head of the judiciary, and a minister responsible for all sorts of constitutional matters [18] - the core, principal, duty of the office was and is the custody and control of the Great Seal of the Realm [19].

That's this thing [20]

Or, at least, it was this thing until the seal matrix wore out and a new one was produced. There do not appear to be any freely licensed images of the new design, however, so you will have to visit the engraver's website yourself. Personally I think the horseback version is better.

And, indeed, as in former times it is delivery of the Great Seal to the new Lord Chancellor that formally appoints him to office. He must also take the Official Oath, and before the reforms in 2005 the Judicial Oath, which is defined at section 4 of the Promissory Oaths Act 1868 as
I, , do swear that I will well and truly serve our Sovereign Lady Queen Victoria in the office of , and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or illwill. So help me God.
Now, the Lord Chancellor instead has a bespoke oath (and which to my mind is the singular most uninspiring oath contained in any British enactment), provided by section 6A of the Act as
I, , do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible. So help me God.
Which, without a statutory basis, seems to be taken twice. Once in the Privy Council meeting where he is given the Great Seal, and again at the Royal Courts of Justice before the Lord Chief Justice, Master of the Rolls, the Attorney-General, and so on.

The modern practice is that the Lord Chancellor is also Secretary of State for Justice, and consequently he would need to take the Official Oath for that too, and receive the usual set of secretarial seals. Seals all the way down!

This is recorded in the Privy Council records as
and although the appointment is not recorded in the Court Circular in a way different to the Secretaries of State; just before the Privy Council meets, the outgoing Lord Chancellor formally returns the Great Seal to the Queen, viz.
The Rt. Hon. David Gauke MP had an audience of The Queen this afternoon and delivered up the Great Seal and took leave upon relinquishing his appointment as Lord Chancellor and Secretary of State for Justice.
in a manner similar to how Secretaries of State would return their seals in the past.

The Lord Privy Seal

Like the Lord High Chancellor, the Lord Privy Seal is also an office of great ancienty (dating from 1307, before which the Privy Seal was held by the Controller of the Wardrobe [21]). However, unlike the Lord Chancellor, and somewhat unique amongst the other sinecure posts, the Lord Privy Seal nowadays has no duties whatsoever. (Actually this isn't quite true, see below)

All need for things to be sealed with the Privy Seal was abolished by the Great Seal Act 1884 [22] and consequently the office ceased to have any duties. Nonetheless, a Privy Seal matrix still exists (it appears, though I don't have a photo handy, to be the final one made for Victoria) and it is by delivery of this to them that a Lord Privy Seal is appointed. They also take the Official Oath.

Recorded in the Privy Council records thusly
and recorded in the Court Circular separately from the Secretaries of State as
The Baroness Evans of Bowes Park took the Oath of Office as Lord Privy Seal, kissed hands upon her appointment and received the Privy Seal.
Today the Lord Privy Seal is invariably the leader of one of the two Houses of Parliament.

[C1] Addendum: Rich Greenhill correctly points out that the Lord Privy Seal actually does have some exceptionally minor duties. For one she is chairman of the Board of Trustees of the Chevening Estate by virtue of schedule 1 of the Chevening Estate Act 1987 [22A]. In addition, by S.I. 2007 No. 2914 she was incorporated as a corporation sole and had various equality duties transferred to her, but by S.I. 2010 No. 1839 these were transferred to the Secretary of State. This, however, easily remains the most sinecure of the sinecure offices.

The Lord President of the Council

Unlike the previous two Great Officers of State, the office of Lord President of the Council is reasonably young - being created in only 1530 for Charles Brandon, the 1st Duke of Suffolk. The sole responsibility attached to this office now [23] is to preside at meetings of the Privy Council. And indeed, this then explains its bespoke appointment method: Her Majesty simply declares that so-and-so is Lord President and, having taken the Official Oath, they become it, viz.
and in the Court Circular as
The Queen declared in Council the Rt. Hon. Jacob Rees-Mogg MP Lord President of the Council, who was sworn and kissed hands on his appointment.
Because the Lord President needs to preside at the rest of the Privy Council meeting, this appointment is actually the first one made. Before that, some other minister (in 2019 it was Lady Evans, the continuing Lord Privy Seal) presides as an Acting Lord President.

The Lord President is usually, but not invariably [24] leader of one of the two Houses of Parliament.

The Chancellor of the Duchy of Lancaster

Another curious sinecure, with various vestigial responsibilities related to the Duchy of Lancaster (or in other words, those parts of Her Majesty's estate which are not the responsibility of the Crown Estate). 

Even more curiously, the Chancellor of the Duchy is not appointed at a Privy Council meeting but immediately after it, so in 2019 we see in the Court Circular
After the Council the Rt. Hon. Michael Gove MP had an audience of The Queen, was sworn Chancellor of the Duchy of Lancaster, kissed hands upon his appointment and received from Her Majesty the Seals of Office.
The Official Oath being once again required by the Promissory Oaths Act 1868. To the best of my considerable digging, other than his seals, a Chancellor of the Duchy receives no other document on appointment. And I've done a lot of digging (but if someone finds a Patent or something to go with this, do let me know and I will update!)

These days, the office of Chancellor of the Duchy is usually used as a minister without portfolio type role.

The Chancellor and Under-Treasurer of Her Majesty's Exchequer

Commonly called the Chancellor of the Exchequer, and now invariably combined with the office of Second Lord of the Treasury (wait for it!). Historically, Jason Loch tells me, there were Letters Patent appointing this office, but this practice seems to have quietly ceased sometime around the end of the 20th century. The Promissory Oaths Act 1868 requires the Official Oath to be taken though, and this is done, as usual, at a meeting of the Privy Council, viz.
And is recorded in the Court Circular amidst the other Secretaries of State. Notably, the Chancellor has no seals of office as that role - and indeed, the office of Chancellor itself comes with exceptionally little legal power indeed. It is not, after all, the Chancellor of the Exchequer who runs Her Majesty's Treasury (confusing as this seems) but the Lords Commissioners, which we come to, well, right now!

This is another office of considerable vintage, dating from about 1221, but unlike the Great Officers of State, it never assumed the importance it now has in government until the time of Pitt the Younger or so. It was, in effect, originally responsible for the Crown's income, whereas the Lord High Treasurer was responsible for outgoings. A gross simplification but it follows the gist of the arrangements.

The Lords Commissioners of Her Majesty's Treasury

The Great Officer of State who ranks immediately after the Lord High Chancellor would be the Lord High Treasurer. However, this office [25] is now invariably in Commission [26]. As we alluded to earlier, the Prime Minister is also First Lord of the Treasury, and the Chancellor of the Exchequer is the Second Lord. They are joined by a number of Government whips as Junior Lords.

The reason for this almost arcane arrangement is to do with salaries. Schedule 1 to the Ministerial and Other Salaries Act 1975 provides a salary to "The Prime Minister and First Lord of the Treasury" (so, in effect, it is via the second component that he draws his salary), to the Chancellor of the Exchequer explicitly, and to the Junior Lords.

Unlike the previously discussed offices, this one comes with some paperwork, in the form of this very long sentence printed on nice paper [27]

The process in that long sentence can be summarised as

  1. name the new people
  2. say they replace the old people
  3. declare that all the stuff that people who are Treasury Commissioners in the past have had or have done, they likewise have or have to do
  4. declare they can continue things started but not finished by the previous Commissioners
  5. require the rest of Her Majesty's Government to pay attention to the acts of the new Commissioners
  6. and declare that any action of the Commission is ok if two or more of them agree (this is important, and will crop up again in the Paymaster-General section next, of all places!)
The "two people" requirement is essentially derived from the Treasury Instruments (Signature) Act 1849 [28] which provided that henceforth notwithstanding any law or usage to the contrary only two signature are needed. In practice it is invariably the government whips, not the Prime Minister and Chancellor, who sign.

On the bottom left is a wafer Great Seal (wafers versus pendant seals is a topic for another day), and being as these are really Letters Patent, Her Majesty doesn't actually sign the Commission but, as hinted by the subscription "By Warrant under the Queen's Sign Manual" signs a warrant authorising the Patent to be sealed. Contrast that with the warrants of appointment in later sections below.

Astute readers will notice the date on that Commission above is not the same date as Johnson became Prime Minister nor the day after when he appointed his ministry. The practice seems to be for the Commission to issue some weeks or months later. Being a very unusual person, I have checked every Statutory Instrument made by HM Treasury since 2002 and in every case at the change of a ministry, until the new Commission is issued, the previous junior Lords Commissioners sign everything.

One other curio is that, even when some Lords Commissioners continue, the entire Commission is re-issued, cf. these two from Theresa May's time

However, by the Promissory Oaths Act, the First Lord is required to take the Official Oath, and this is done at the meeting of the Privy Council where the Secretaries of State and others are appointed. Not when the new Prime Minister kisses hands (and hence my contention that the Prime Minister is not actually appointed as First Lord at the same time as he is commissioned to form an Administration).

This is likewise recorded separately in the Court Circular as
The Rt. Hon. Boris Johnson MP was sworn First Lord of the Treasury.

Her Majesty's Paymaster-General

The office of Paymaster-General was created in 1836 out of the merger of four existing offices, all bar one of which dated from ca. the 17th century
  • the Paymaster of His Majesty's Forces (1661)
  • the Paymaster of the Royal Hospital Chelsea (1681)
  • the Treasurer of the Ordinance (1670)
  • the Treasurer of the Navy (1546)
To which were later added the Paymaster of Exchequer Bills and the Paymaster of the Civil Service. In effect, the Paymaster-General became the government's banker, responsible for the flows of money around the Civil Service, the Forces, and related institutions.

More modern reforms to the office have caused all the banking responsibilities to be moved elsewhere and now only residual duties remain in what is essentially another sinecure post. It is now almost invariably part of the Cabinet Office and a sort of "general" minister.

It is required by the Paymaster General Act 1838 [29] that a Paymaster-General be appointed by a Royal Warrant countersigned by Treasury. This means, as noted above, two Treasury Lords need to sign it. But as we see here in the Warrant appointing Oliver Dowden the Warrant has instead been incorrectly signed by Robert Buckland, the Lord Chancellor [30]

Some digging by me and others indicates this erroneous state of affairs has persisted for some considerable time, though the Privy Council Office assure me it wont happen again. Whether this affects the validity of the appointment is one for the lawyers (but if you were to ask me...). What is mildly amusing is that the Act which imposes the requirement is cited in the first paragraph of the warrant itself!

Here we see that Her Majesty has signed the warrant Herself, this not being a Patent.

The Paymaster-General is required to take the Official Oath, but this is not administered at a Privy Council meeting.

The President of the Board of Trade

The full title of the Board of which this minister is head of is "The Lords of the Committee of the Privy Council appointed for the consideration of all matters relating to Trade and Foreign Plantations". First created in a vaguely comparable form by Cromwell, William III then created a sort of similar body, which ultimately fell apart in the 18th century, before Pitt the Younger recreated it as a committee of the Privy Council, which it remains to this day.

However, essentially all the duties and powers of the Board have been transferred to the Secretaries of State [31], so it is now simply an additional title of the Secretary of State for International Trade (and before 2017, Business, and even earlier Trade and Industry, etc.). However, in earlier times, it was the President who was responsible for almost all economic regulation in the United Kingdom, as well as having an array of colonial duties. So, for example, it was the Board of Trade which regulated railways, merchant shipping, banking, certain forms of import licenses, and even at one time quarantines and the like.

Being a Privy Council committee the President is, obviously enough, appointed by Order-in-Council.
The President is required to take the Official Oath, but this is done as part of their concomitant appointment as a Secretary of State
No special entry is made in the Court Circular in this case.

The Law Officers of the Crown

These comprise 
  • Her Majesty's Attorney-General for England and Wales
  • Her Majesty's Solicitor-General for England and Wales
  • Her Majesty's Advocate-General for Scotland
  • Her Majesty's Advocate-General for Northern Ireland
The first two are very old offices. There has been an Attorney-General since at least 1277 and a Solicitor-General since at least the 15th century. The second two are mere toddlers in comparison, being created in 1999 (by the Scotland Act 1998) and 2010 (when the relevant provisions of the Justice (Northern Ireland) Act 2002 came into effect). While the Advocate-General for Scotland is a separate office, by section 27 of the 2002 Act, the Attorney-General is ex officio Advocate-General for Northern Ireland [32].

Not discussed here due the offices not being ministerial, but Her Majesty as Duke of Lancaster, His Royal Highness the Duke of Edinburgh, and His Royal Highness the Prince of Wales as Duke of Cornwall are all entitled to Attorneys-General too, as was Her Majesty the Queen Mother in Her lifetime.

All four offices essentially act as the principal legal advisers to Her Majesty's Government regarding the law in the relevant jurisdiction. In addition, the Attorney-General is ex officio head of the Bar of England and Wales, and she and the Solicitor-General are invariably made Queen's Counsel on appointment if not already [33]. The Attorney-General also has responsibility for giving consent to prosecute in certain special cases, and has duties (derived from the Crown's role as parens patriae) relating to charities and for prosecuting contempts of court.

Before the Law Officers Act 1997, the Solicitor-General was not actually empowered to act in place of the Attorney-General. By virtue of that Act though, any action of the Solicitor-General is taken to be one of the Attorney-General.

Similar to many judges, the Attorney-General and Solicitor-General are appointed by Letters Patent pursuant to an "Immediate Warrant" - a matter for another BenBlog I suspect. But that is the cause of the subscription here being "By the Queen Herself" unlike the Treasorial one above.

Anyway, the Attorney-General's Letters Patent [34] [C6]

And the Solicitor-General's

The phrase "one of Our Counsel learned in the law" means a Queen's Counsel (which as noted above, all Attorneys-General ultimately are or will be), who are formally "Her Majesty's Counsel learned in the law". Notice also how, like the Treasury Commissions, the former office holder is formally displaced by the new one.

Neither the Attorney- nor Solicitor-General is required to take the Official Oath, so this Patent is entirely sufficient for them to enter into their offices (even if Cox was nominally appointed in July but only actually appointed in August, and Michael Ellis had to wait until September!)

And now a confession: well more a criticism of the useless Cabinet Office. The Office of the Advocate-General for Scotland claim they do not hold copies of their minister's patent but that the Cabinet Office do. And have the Cabinet Office deigned to actually reply to this? No.

If and when they do, I shall update this post accordingly.

The Advocate-General for Northern Ireland has no Patent, it being provided legislatively that the Attorney-General is so.

Her Majesty's Household

The remaining government ministers, with the exception of the "junior" minister which we will treat of momentarily, are members of Her Majesty's Household and today [35] comprise
  • The Treasurer of Her Majesty's Household
  • The Comptroller of Her Majesty's Household
  • The Vice-Chamberlain of Her Majesty's Household
  • The Captain of Her Majesty's Body Guard of the Honourable Corps of Gentlemen at Arms [36]
  • The Captain of The Queen's Body Guard of the Yeomen of the Guard
  • The Lords-in-Waiting [37]
The first three serve as the three main Deputy Chief Whips in the House of Commons (or cognate offices, the exact nomenclature varies from government to government, but always in that order) but are not totally sinecures. At least the Comptroller seems to have duties at Garden Parties (or so they tell me), and the Vice-Chamberlain writes a report on each day's Parliamentary proceedings for Her Majesty's Red Box, and is Her Majesty's hostage whenever she goes in State to the Palace of Westminster.

One assumes the two Captains, who are invariably the Chief Whip and Deputy Chief Whip in the Lords, can if desired actually lead their bodyguards on state occaisions. Lords-in-Waiting do sometimes has residual duties like meeting foreign dignitaries at airports [38].

[C2] Addendum: it has been confirmed to me that Lord Courtdown, at least, let the Yeoman-of-the-Guard at State Opening in October 2019, so clearly this can still happen.

I am assured that at least some of these offices are appointed by warrants, but the Cabinet Office deny all knowledge of this. As usual.

The Rest

The overwhelming majority of Ministers of the Crown are not actually included in the above sections though. These are the multitude of Ministers of State, Parliamentary [39] Under-Secretaries of State, and equivalent roles. It even includes a small number of ministers who are usually (but not invariably) of Cabinet rank, viz. the Parliamentary Secretary to the Treasury (who is the Chief Whip, and isn't a Treasury minister), the Chief Secretary to the Treasury (who is a Treasury minister, but not actually able to sign anything), and any Ministers without Portfolio (who are, well, intentionally nothing).

These, and to an extent the government as a whole, are formally appointed when the Prime Minister submits his advice to Her Majesty on the composition of the government. This actually quite wonderful document looks like this (and I am indebted to Jason Loch for obtaining this!)

Her Majesty's approval is noted by the initials ER on the top right.

Some observations. One, I never knew until about seven minutes ago that the Secretary of State for Justice is technically unpaid (but it makes sense, he draws his salary as Lord High Chancellor). It is also curious, until one reads the Ministerial and Other Salaries Act 1975, that the "non-sinecure" government whips are listed.

And that, broadly, concludes the process by which Her Majesty's Government in the United Kingdom is formed. A few things have been intentionally omitted. For one, I am going to pretend that Parliamentary Private Secretaries don't exist because I don't like them.

I have also omitted how machinery of government changes are carried out as being well outwith the scope of this blog.

Bonus: Non-Ministerial Departments and Quangos

Now, on the way to discovering all of the above I acquired a collection of warrants and patents from various other public bodies. Originally this was a scheme to look for patterns (and to try and understand who approves and seals what), and I will return to that some day. For now, lets discuss them here since just because a public body is not led by one of Her Majesty's Ministers doesn't mean it is an unimportant entity.

The Crown Estate Commissioners

Historically, the King was responsible for funding the entirety of His Government, which he had to do from a combination of the 'customary' [40] revenues of the Crown and any subsidies voted by Parliament. As government increased in size and scope this naturally became troublesome. So, in 1760, the new King George III surrendered his hereditary revenues (except the Duchy of Lancaster, which was run by its Chancellor we discussed above, and the Duchy of Cornwall for his heir) to Parliament in exchange for an annuity, and the Civil List was born.

Every reign since the new monarch of the day has likewise surrendered their hereditary revenues. Although the Civil List as a concept was abolished and replaced with the Sovereign Grant in 2011 [41], the underlying idea is the same. The surrender is effected by section 1(1) of the Civil List Act 1953, which reads
(1) Subject to subsection (2) below, the hereditary revenues which were by section one of the Civil List Act 1937 [42] directed to be carried to and made part of the Consolidated Fund shall, while section 1 of the Sovereign Grant Act 2011 is in force, be paid into the Exchequer and be made part of the Consolidated Fund.
The land and so on forming part of this (as opposed to duties of customs and the like) is then managed pursuant to the Crown Estate Act 1961 [43] which at paragraph 1 of the first Schedule thereto provides, inter alia
(1) There shall be such number of commissioners, not exceeding eight, as Her Majesty may from time to time determine.
(2) One of them shall be appointed as first Crown Estate Commissioner and another may, if Her Majesty sees fit, be appointed as second Crown Estate Commissioner.
(4) The commissioners shall be appointed by Her Majesty, by warrant under the Royal Sign Manual.
And here are some warrants. First, naturally, is the First Crown Estate Commissioner [C7]

Then the Second Crown Estate Commissioner

The "ordinary" Commissioner warrants look similar. If anyone is curious ask, I have a collection...

Now, I know not why the position of the seal and the exact design of the warrant seems to vary a bit (nor precisely what that blue seal even is), but when someone inevitably pings me after this is published to say "aha, it is this" I shall add it here. Do need to leave some exercises for the reader!

As before, these being Royal Warrants not Letters Patent, they are signed by Her Majesty. And similarly, while Patents tend to explicitly displace the previous incumbent of the office, these generally simply appoint a new person to it. Also, did you spot the counter-signatures of the Lord Chancellors at the bottom?

The Forestry Commission

Before devolution, and therefore the creation of a Scottish Forestry Commission (which I believe now has another name), the Forestry Commission was the largest landowner in the United Kingdom. Established in 1919 [44] it has managed forests in England and Wales ever since. The principal legislation underpinning it was then consolidated and re-enacted (and has been subsequently amended a lot) by the Forestry Act 1967, which at section 2 provides that
(1) The Commissioners shall consist of a chairman and not more than ten other members appointed by Her Majesty by warrant under the sign manual to be Forestry Commissioners.
The Forestry Commission should be commended for quite possibly the fastest FOIA response I have ever seen, at less than two hours to supply copies of the Royal Warrants appointing all eight current Commissioners. The Chairman and one other by way of example are reproduced here.

Lest I be accused of making this blog over prolix, there is a reason for including these apparently identical things. There is no statute or otherwise anywhere saying what a Royal Warrant of appointment should include. Consequently, the only way to find out is to acquire a bundle and compare them.

And here we begin to see a general pattern: the warrants almost invariably have three parts
  1. the salutation
  2. a recital of what power or powers that they are made under
  3. the actual appointment of the officeholder, with his terms and conditions (if any)
Astute readers will notice that the Paymaster-General's warrant omits (1), and it is entirely unclear why.

The Bank of England

The current constitution of the Bank of England is broadly (but, because it would be too easy otherwise, not entirely) given by the Bank of England Act 1998. However, the actual legal existence of the Bank itself is provided for by section XIX of the Bank of England Act 1684 [45]. There is also this gorgeous Royal Charter dated the same year, which the Bank have been very nice and put online for us to gaze in wonder at (I'll stop swooning now)

Somewhere in there I'm sure is the provision on how appointments were originally made. Nonetheless the 1998 Act now provides at section 1 for the Court of Directors to be "appointed by Her Majesty", viz.
(1) There shall continue to be a court of directors of the Bank. 
(2) The court shall consist of the following directors appointed by Her Majesty—
(a) a Governor,
(b) a Deputy Governor for financial stability,
(ba) a Deputy Governor for markets and banking,
(c) a Deputy Governor for monetary policy,
(d) a Deputy Governor for prudential regulation, and
(e) not more than 9 non-executive directors.
Now, initially this vexed me since it didn't specify how Her Majesty was to make the appointments. So I asked the Bank for copies of them. Which they refused as being exempt from disclosure as "communications with the Sovereign" [46]. Well after a brief tussle, described by the Secretary of the Bank as me citing "an array of precedents and authorities" [47] I have some of them.

I say some because Mark Carney's warrant as Governor has gone AWOL...

Anyway, an example of a Royal Warrant (it transpires "appointed by Her Majesty" means, implicitly, by warrant — at least in England) appointing a Deputy Governor, specifically Benjamin Broadbent as Deputy Governor for Monetary Policy_

Now, unlike the Crown Estate Commissioners and Forestry Commissioners, it seems that multiple members of the Court of Directors can be appointed in one warrant, cf. here where two members are appointed

Though I wonder if anything of great consequence, aside from saving some paper and wafer seals, turns on all that.

The Solicitor for the Affairs of Her Majesty's Treasury

I regret that this section is nothing short of confusing - indeed even the Government Legal Department themselves (which is the modern name of the Treasury Solicitor's Department [48]) were rather confused for a bit.

Her Majesty's Government's solicitor (as opposed to its attorney, etc.) is the pithily named "Solicitor for the Affairs of Her Majesty's Treasury". The history of this office is ... vexing. We will ignore the dance that seemed to occur in the late 18th and early 19th century where the two extant Treasury Solicitors were condensed into one because life is too short, and instead first look at the Treasury Solicitor Act 1876 [49].

At section 1, that Act provides for the Treasury Solicitor to be a corporation sole, viz.
The person for the time being holding the office of Solicitor for the affairs of Her Majesty’s Treasury (in this Act referred to as the Treasury Solicitor) shall be a corporation sole by name of the Solicitor for the affairs of Her Majesty’s Treasury, and by that name shall have perpetual succession, with a capacity to acquire and hold in that name lands, Government securities, shares in any public company, securities for money, and real and personal property of every description, to sue and be sued, to execute deeds, using an official seal, to make leases, to enter into engagements binding on himself and his successors in office, and to do all other acts necessary or expedient to be done in the execution of the duties of his office.
It appears that no actual instrument appoints each instant Treasury Solicitor, or at least the GLD couldn't find one. The words "shares in any public company" are more apposite than they first appear: it is the Treasury Solicitor who often formally owns nationalised companies, for example after the enactment of the Banking (Special Provisions) Act 2008 it was the Treasury Solicitor who came to own the Northern Rock plc.

Section 2 of the same Act grants to the Treasury Solicitor Her Majesty's bona vacantia and escheat rights (except in right of the Duchy of Lancaster) supposedly by Royal Warrant, but the GLD failed to find any evidence of it. Though it undoubtedly exists somewhere, probably in the National Archives at Kew.

However, this is not the sole office the Treasury Solicitor occupies. And even older office of Queen's Proctor (or Her Majesty's Procurator General) became annexed to it in 1876. There has been a Queen's Proctor since at least 1660, but in reality it almost certainly predates that date in some form.

Avoiding for now any discussion of the equally odd Admiralty Advocate (as to which, future BenBlog time, alas), the Queen's Proctor is Her Majesty's advocate in the ecclesiastical courts. In addition, he has a residual duty to intervene in divorce cases as provided for in section 8 of the Matrimonial Causes Act 1973 [50]

This is not some curio, for it is as Queen's Proctor and Her Majesty's Procurator-General that the Treasury Solicitor has a Royal Warrant. This is an unusually voluminous warrant by the standards of these things, almost certainly an artefact of the antiquity of this quirky but important office.

The basic structure little different to usual, but after the salutation we find an unusual recital that the office of Proctor is void. Then we see a declaration that the new appointee is suitable for the role (quite why this says "Free Grace" rather than "Especial Grace" is an open question). In that same long paragraph we see how the Proctor has authority to represent the Queen in all matters "Matrimonial, Maritime, Foreign, Civil and Ecclesiastical", I think "Civil" here means "Civilian" as opposed to "Common Law"; there is also a later reference to prize cases, which equally are civilian causes. And then at the end we see the monition, normally seen in Sign Manual warrants, that this is a "sufficient warrant". That incomprehensible signature at the bottom seems to be Chris Grayling's.

Still following? Who knew that the otherwise anodyne Government Legal Department was so constitutionally exciting?

The Registrar-General

[C4] The General Register Office, and the office of Registrar-General, was first created by the  Births and Deaths Registration Act 1836. Section 1 of the Registration Services Act 1953 [50A] now provides that
(1) Her Majesty may from time to time under the Great Seal of the United Kingdom appoint a Registrar General for England and Wales, and any person so appointed shall exercise the powers and perform the duties conferred or imposed by or under any enactment on the Registrar General, whether described by that title alone or with any additional description, and shall hold office during Her Majesty’s pleasure.
This would, of course, leave open the question as to what actually is the "instrument" under the Great Seal, but it is quite obvious it would be Letters Patent. And, indeed, that is what it is [50B]

All fairly standard, though it does note the fact that the office was void by resignation rather than displacing the extant official. But nothing other than it being a curious observation turns on that.

Chairman of the Statistics Board

[C5] Official statistics in the United Kingdom have a complicated history (after all, that makes it easier to hide them after the damned lies!). The modern arrangement is that there is a Statistics Board (which publicly calls itself the UK Statistics Authority) to "regulate" matters, with the slightly older Office of National Statistics as part of it. The ONS itself was formed from the merger of the Office of Population Censuses and Surveys and the Central Statistical Office in 1996 (I think). 

Of those two antecedent offices, the OPCS was itself formed from the merger of the General Register Office (which has since, as noted above, departed this ensemble with its Registrar-General and found a new home in Her Majesty's Passport Office) and the Government Social Survey Department. It is my virtue of the vestiges of this merger that the ONS is still responsible for the census.

The CSO, in comparison, was born out of the wartime need for reliable statistics, and eventually became a key part of the Government Statistical Service. I wonder if the ONS publishes statistics on how much time has been spent changing the machinery of government statistics?

Anyway, in 2007 the modern arrangements were created by Statistics and Registration Service Act 2007. Section 3 of which provides 
(1) The Board is to consist of executive and non-executive members.
(2) The non-executive members are to be—
(a) the chairman, appointed by Her Majesty, and
(b) at least five other persons appointed by the Minister for the Cabinet Office.
It is that Chairman, appointed by Her Majesty, who has essentially replaced the Registrar-General as the leader of all government statistics, and it his Royal Warrant (recall that an unspecified power of appointment is invariably by Royal Warrant, whereas the Registrar-General, being required to be appointed under the Great Seal was by Letters Patent).

Now, that intriguing Gaelic reference piqued my interest. Authority for it is given by section 1 of the 2007 Act, viz.
(1)There is to be a body corporate to be known as the Statistics Board (in this Part called “the Board”).
(2)In Gaelic the Board is to be known as Am Bòrd an Staitistig.
(3)In Welsh the Board is to be known as Y Bwrdd Ystadegau.

I believe, although my search was not entirely exhaustive, that this means the UKSA is the only UK-wide public body with an official Gaelic name.

The National Archives

The person who is "Chief Executive" of the National Archives actually holds, concurrently, six offices, viz.
  1. Keeper of Public Records
  2. An (but see below) Historical Manuscripts Commissioner
  3. Queen's Printer of Acts of Parliament
  4. Queen's Printer for Scotland
  5. Government Printer for Northern Ireland
  6. Controller of Her Majesty's Stationary Office
but by virtue of a veritable panoply of means. Starting with Keeper of Public Records (and ignoring for now the historical position of the Master of the Rolls [51] in this), we turn to section 2 of the Public Records Act 1958 [52], where we see this
The Secretary of State may appoint a Keeper of Public Records to take charge under his direction of the Public Record Office and of the records therein and may, with the concurrence of the Treasury as to numbers and conditions of service, appoint such other persons to serve in the Public Record Office as he may think fit.
Experience suggests that a power of the Secretary of State (or the Lord Chancellor as the original Act provided) to appoint someone means that the instrument in question is a mere letter. But this initial office is important because the others (mostly) flow from it.

Turning next to the Historical Manuscripts Commission. Established in 1869 as a multi-member Commission, after various revisions and tweaks, in 2003 it was changed so that the Keeper was the sole Commissioner. The Commission's job is to find and identify documents of national interest which are in private hands and make arrangements for their preservation.

As Queen's Printer of Acts of Parliament, we find the Keeper has a Patent, reproduced here.

This office is responsible for ensuring that Acts of Parliament (and, by virtue of various other enactments, other English and United Kingdom legislation) is published; and copies of legislation published under his authority is acceptable in court. One intriguing curio is how those Letters Patent also grant the Keeper control of Crown Copyright.

Section 92(5) of the Scotland Act provides that the Queen's Printer of Acts of Parliament shall be ex officio Queen's Printer for Scotland.

The office of Government Printer for Northern Ireland is appointed by order of the Executive Office, as found in the Belfast Gazette.

Finally, the appointment of the Controller of Her Majesty's Stationary Office is made by the Secretary of State and therefore, like the Keeper's original appointment, has no substantial paperwork.

This concludes the "Her Majesty's Government" part of this exceptionally long blog. I intend to discuss further public bodies in the future as I extract their patents and warrants from them, for example Her Majesty's Revenue and Customs.

Second Bonus: Devolved Governments

But the United Kingdom no longer has only one "government". So how do the new devolved administrations approach the process of forming a government? (This is mostly a vehicle to show off the columinar bilingual Welsh patents and the gorgeous scrivened Scottish one)

The Welsh Ministers

In section 46 of the Government of Wales Act 2006 it is provided, inter alia that
(1) The First Minister is to be appointed by Her Majesty after nomination in accordance with section 47.
Another example of an Act saying Her Majesty can appoint someone without saying how.

As it transpires this is by Royal Warrant (which one should start to see is the normal way these things are done). Unusual to the Welsh context, the warrant is bilingual, with English text in one column and Welsh text in another. We also notice that it recites the requirement under section 47 of the Act that the Assembly elect a First Minister, and that it has done so, in addition to just reciting the enabling power.

On the bottom left, just about intelligible if one squints a lot, is what I initially thought was the Welsh Seal, but I am no longer convinced about this, and opposite it is the counter-signature of David Gauke, the then Lord Chancellor, as usual.

Section 48 of the Act then provides, again inter alia, that
(1) The First Minister may, with the approval of Her Majesty, appoint Welsh Ministers from among the Assembly members.
The Welsh Government have confirmed that this appointment, a bit like junior ministers in HM Government, does not come with any formal paperwork or warrants.

The Counsel-General for Wales

However, that leaves the Welsh equivalent of the Attorney-General: The Counsel-General for Wales. Section 49 of the Act then provides that
(1) The Counsel General is to be appointed by Her Majesty on the recommendation of the First Minister.
By now the difference in wording between sections 49 and 48, and the similarities between 49 and 46, should be obvious, and, yes, the Counsel-General is appointed by warrant too!

I have no real idea why Jeremy Miles was appointed in 2017, then reappointed in the middle of 2019. Nor do I know why the columns are the opposite way around — and my only theory as to why the seal is suddenly at the top is due to exigencies of space.

But, one notices the same structure as the First Minister's warrant, overall, which is unsurprising. 

The Scottish Ministers

Now up North. For some reason that remains utterly elusive, when Nicola Sturgeon became First Minister in 2014 she was, like in Wales appointed by Royal Warrant (see mid-way down here). However, in 2016, a set of Letters Patent commissioning her as First Minister were sealed with the very prolixly named "seal appointed by the Treaty of Union to be kept and made use of in place of the Great Seal of Scotland". They are, however, quite pretty being scrivened and with a pendant seal [53].

Rich Greenhill worked out for me that "SDN" is a contraction of "Serenissimæ Dominæ Nostræ", so the full Latin subscription is
Per Signaturam Manu Serenissimæ Dominæ Nostræ Reginæ Supra Scriptam
which I would translate (modulo my legendary inability to decline nouns correctly) as
By the Sign Manual of Our Serene Lady the Queen Superscribed
which I take to be the Scottish equivalent of "By Warrant under the Queen's Sign Manual".

Aside from minor differences of appearance, this follows the same essential idea as an English patent, albeit it looks much nicer and has some fiddly Latin.

The Lord Advocate

Lest it be thought that only the First Minister gets a hand written patent, we turn now to one of the oldest Scottish government officials (whereas the First Minister might be argued to be both one of the newest and, by virtue of being ex officio Keeper of the [seal appointed... words...] Great Seal of Scotland, one of the oldest too).

The Lord Advocate, or Her Majesty's Advocate, is the Scottish equivalent of the Attorney-General. Except that his role is much larger. All prosecutions run in his name, and the Scottish equivalent of the CPS, the Crown Office [54] and Procurator-Fiscal Service is run by him.

There has been an Lord Advocate, or equivalent, since about 1483. After the office of Secretary of State for Scotland abated in the 18th century (scroll up, a lot), for a time the Lord Advocate essentially ran government in Scotland. Even thereafter he was the principal advisor on Scots law to Her Majesty's Government until 1999.

In 1999, the office became attached to the Scottish Executive (as it was then known), becoming legal adviser to the Scottish Ministers.

And here are his Letters Patent

I note a small conundrum here: to me these look and feel like Letters Patent, but the Lord Advocate's Secretary insists on calling it a warrant. 

A Scottish Quango: the Information Commissioner

It seems to be the practice in Scotland that even comparatively minor positions get decent looking patents. Section 42 of the Freedom of Information (Scotland) Act 2002 provides that
(1) For the purposes of this Act there is to be an officer known as the Scottish Information Commissioner (in this Act referred to as the “Commissioner”) who is to be an individual appointed by Her Majesty on the nomination of the Parliament.
which, if we were following the English practice, would seem to imply an appointment by Royal Warrant. Instead, however, Letters Patent under the "seal [...] Great Seal of Scotland" [55] are used.

Which is very nice indeed. I know not why the Scottish practice is to put some greater effort into all this, but I wish the Crown Office [56] would do the same in England.

I was especially pleased the Information Commissioner's office included a photo of the reverse of the commission, which always seems to be neglected.


I really don't think there is one thing to take away from all this, except perhaps to notice that the gentle evolution of the British Constitutional order means that nothing about these processes is very consistent.

There are internal consistencies, some of which are almost hilariously trivial. For example, Royal Warrants all use the same typeface, which is different to Letters Patent. And that where unspecified how a power of appointment is to be exercised, at least in England it means by Royal Warrant.

But equally, inconsistencies abound, e.g. why is there no salutation in the Paymaster-General's warrant? Why "Free Grace" in the one for the Procurator-General? Why are the Law Officers appointed by "immediate warrant"?

But, I guess, it would be nowhere near as fun that way, would it.


This long article would not have happened without the insights - and rummaging - of my fellow Twitter nerds Jason Loch and Rich Greenhill, nor without the wonderful insights of Bluemantle Pursuivant-of-Arms. I am also indebted to some of Ned Donovan's own work, to literally everyone who has contributed to Heraldica, and to Fitzalan Extra-ordinary Pursuivant-of-Arms, though in the latter case mostly for sending me on the path to red herrings [57]. And of course Steve Elibank, the FOIA sleuth that makes us all look like rank amateurs.

Where I have viciously stolen something from one of you, there should be an appropriate credit but if I have unaccountably missed something do shout.

In addition, the countless FOIA officers in government departments and other public bodies I've hassled: thanks [58]; and the Deputy Clerk of the Privy Council was equally insightful.


Nothing this long could be without errors, so putting this heading in ready :-)

22nd February 2020
[C1] Rich Greenhill discovered / reminded me / a bit of both that the Lord Privy Seal does have some very minor duties still, so the text in that section has been adjusted. It remains easily the most sinecure of sinecure positions, however.
[C2] Thanks to Bluemantle for this one.
[C3] I am still unsure if it makes sense, but now there's two attempts at it.
[C4] This section was inexplicably omitted from the original version because, well, I forgot it!

23rd February 2020
[C5] Omitted from the original version because I was unsure, until late last night, of the exact "family tree" of the ONS — and in particular my brain failed to grok the move of the Registrar-General from head of the OPCS/ONS over to being part of HMPO.
[C6] Replaced the original defective PNGs of these two patents (wonky transparency channel, basically) with correct ones.
[C7] These should now no longer be rotated 90°...


I have assumed that the materials obtained by my various FOIA requests are covered (in some sense) by the Open Government License. In addition, the Privy Council extracts obviously are. As for the Court Circular, I am going to argue if anyone moans that it is fair use as an academic commentary.

[1] The legislative background to this is quite confusing. As best as I can tell, it was initially effected by a transfer of functions order in 1968 (which I think was S.I. 1968 No. 1656 but which you will find, if you follow that link, is unpublished), then modified by the (unamended) Civil Service (Management Functions) Act 1992, which because section 3 of the Constitutional Reform and Governance Act 2010 moved management of the Home Civil Service from being a prerogative to a statutory power, has then been modified extensively.
[2] formally "an audience of the Queen's Most Excellent Majesty"
[3] This could matter in three circumstances, one, the Queen could dismiss a Prime Minister who having lost the confidence of the Commons failed to resign [4]; two, the Queen could probably reject the advice of an outgoing Prime Minister where the name tendered clearly could not command the confidence of the Commons; and three, where a Prime Minister has died in office there is obviously no outgoing Prime Minister to offer any advice.
[4] Modulo the effects of the Fixed-term Parliaments Act 2011, which is probably not long for this Earth anyway
[5] The movie The Queen got this quite wrong, as the New York Times point out.
[6] For non-avid constitutional nerds, the Court Circular (published daily in The Times, the Telegraph, and the Scotsman, and online) is the daily record of official Royal engagements.
[7] There are currently seventeen of them, though one is a bit strange.
[8] The "department" - "office" switch is unique to the Home Office; the Foreign Secretary is "Her Majesty's Principal Secretary of State for Foreign and Commonwealth Affairs", omitting the "Office" entirely.
[9] Which, incidentally, is mentioned in section VI of the House of Lords Precedence Act 1539 (31 Hen. VIII. cap. 10) and which still provides the authority for Secretaries of State who are also Barons to precede all other Barons.
[10] Although there had been multiple secretaries before this time on occasions, this was the first time they had delinated responsibilities: the two departments divided home affairs geographically (obviously), while for foreign matters the Northern Department handled the broadly Protestant Northern Europe and the Southern Department the broadly Catholic Southern Europe.
[11] Although there are hints in various places that sometimes the seals may be fictitious; and in any case seals for older departments have been known to be "recycled" for newer ones with the addition of strategically placed scotch tape [CITE me].
[12] This PDF, which we will refer to quite a bit more
[13] This particular day of the Court Circular will keep cropping up again.
[14] Section 10 of the same Act provides for the name of the present Sovereign to be substitute for Queen Victoria here.
[15] "The Lives of the Lord Chancellors and Keepers of the Great Seal of England", Lord Campbell, vol. VII p. <I forgot to write it down>
[16] The office of Lord High Steward being above it, but this being only filled for coronations, the office is almost always void.
[17] Whereas by the House of Lords Precedence Act 1539, he would sit immediately after the Lord High Steward, himself immediately after the Lord Archbishop of York. Quite how this peculiar difference emerged seems to have been lost to the sands of time. Some cite section X of the Act as authority for this, but I can't seen that it necessarily avails one.
[18] Inter alia, relations with the Channel Islands and the Isle of Man and an almost unimaginable range of ecclesiastical responsibilities.
[19] It's always seals, except when it isn't a seal.
[20] A public domain photograph of the seal, obtained from Wikimedia Commons; whether or not a photograph of the seal is "counterfeiting the great seal"
[21] Who, confusingly, was responsible for the Wardrobe, not the Great Wardrobe, nor the Privy Wardrobe. Try not to think too hard about it all, I know I don't.
[22] 47 & 48 Vict. cap. 30
[22A] And was likewise chairman of the Administrative Trustees under the Chequers Estate Act 1917 until this, along with the equivalent Dorneywood position (that of managing the Dorneywood Thomson Endowment Trust Fund 'B'), was transferred to the Chancellor of the Duchy of Lancaster by S.I. 2016 No. 1113 (but you're going to want to watch the dance in S.I.s  2014 No. 2708 and 2013 No. 537 too.
[23] It has, in the past, held a bewildering array of random duties, most notably as the de facto education minister in the United Kingdom. A legacy of this is that many universities and some schools have the Lord President as their visitors.
[24] Cf. Nick Clegg and Lord Mandelson
[25] which dates from ca. 1126, and was first held by someone known solely as "Nigel", then then Lord Bishop of Salisbury.
[26] I note here that in theory all Great Offices of State can be put into Commission, and all of them except Lord President and Lord Privy Seal seem to have been at least once. Although the Lord High Admiral was invariably in Commission for most of the time the Lord High Treasurer has been; after the establishment of the Ministry of Defence this vested in Her Majesty until she appointed His Royal Highness the Duke of Edinburgh to it. But it is from that Admiralty Commission that we get Winston Churchill's office at the start of the Second World War as "First Lord of the Admiralty" which follows by analogy from "First Lord of the Treasury" (and begat the Chief of the Naval Staff being ex officio First Sea Lord).
[27] Elsewhere someone else no doubt discusses the different "grades" of Letters Patent/Royal Warrants. This, printed on stiff paper with a wafer seal, is the bottom one. The "God tier" variant involves a fully scrivened Patent, illuminated lettering, a painted/inked border, all printed on vellum with a pendant seal. There's also a level in between (though I suppose there is an element of you get what you pay for - hopefully I'm not revealing some state secrets here!)
[28] 12 & 13 Vict. cap. 89
[29] 5 & 6 Will. IV. cap. 35; this was also the Act which effected the merger of the four existing offices into one.
[30] Now, almost all warrants are these days countersigned by the Lord Chancellor (and in the past it was the Home Secretary who often did likewise). What is unusual here is that the 1835 Act requires someone else to countersign it.
[31] And any that have been missed were declared to be jointly exerciseable by the Secretary of State and the Board (or the President) by the Article 2 of The Secretary of State for Trade and Industry Order 1970 (S.I. 1970 No. 1537)
[32] This is likely due to a combination of two related things: since the suspension of the Northern Ireland Parliament the Attorney-General for England (as it then was) had been ex officio Attorney-General for Northern Ireland and therefore the department had experience of Northern Irish law; and in any case the differences between English Law and Northern Irish Law are minimal compared to Scots Law.
[33] And until the 1990s were entitled, like Pusine Judges of the High Court, to an automatic Knighthood too. Which we should bring back, if only because then we could have had Sir Geoffrey Cox and now Dame Suella.
[34] This is actually the unsealed draft, but nothing turns on that. Why one is double-spaced and one isn't is a total mystery.
[35] In the "olden days" this list was much longer, and even Ladies of the Bedchamber (remember that particular Victorian crisis?) were political appointees.
[36] Yes, really. I sometimes wish I was making these things up...
[37] And, when appropriate, Baronesses-in-Waiting
[38] These should be distinguished from the Permanent Lords-in-Waiting, who are retired former senior members of Her Majesty's Household, e.g. the Lord Vesty, who is a former Master of the Horse.
[39] Distinguished by this adjective from the Permanent Under-Secretaries of State.
[40] From which, the word 'customs' descends.
[41] By the Sovereign Grant Act 2011, which inter alia has the best preamble of any Act of Parliament.
[42] The Civil List Act 1937 then refers to the Civil List Act 1936 which refers to the Civil List Act 1910 which... you get the idea. One day I will follow this chain all the way back.
[43] 9 & 10 Eliz. II. cap. 55
[44] By the Forestry Act 1919, (9 & 10 Geo. V. cap. 58)
[45] Sometimes the "Tonnage Act 1694", (5 & 6 Will. & Mar. cap. 20)
[46] And thus caught by section 37 of the Freedom of Information Act
[47] It was precisely one, Loch vs. Information Commissioner & Ministry of Justice [2018] UKFTT 2017_0223 (GRC)
[48] An all round better name.
[49] 39 & 40 Vict. cap. 18
[50] This already long blog is a veritable smorgasboard of random facts.
[50A] 1° & 2° Eliz. II cap. 37
[50B] The poor quality of this image is because Her Majesty's Passport Office, who seem to have absorbed and assimilated the General Register Office, sent me it in quite literally the least helpful format possible.
[51] The "Keeper or Master of the Rolls and Records of the Chancery of England". Oh you didn't think Master of the Rolls was his full title, did you?
[52] 6 & 7 Eliz. II cap. 51
[53] This image being viciously stolen from The National Records of Scotland website, where it is available under version 3 of the Open Government License.
[54] This is that Crown Office; neither that one in the Ministry of Justice, nor that one in the Queen's Bench Division.
[55] Look, I'm not writing it out each time.
[56] Now I mean that one. Not the Scottish one nor the High Court one.
[57] I am sorry but I couldn't resist!
[58] Except the useless denizens of the Cabinet Office